The Unconstitutionality of Slavery Part 6

The foregoing and other ill.u.s.trations of the use of the words "free" and "freemen," may be found in Jacob's Law Dictionary, under the head of Freeman, London, &c.

And this use of these words has been common in the English laws for centuries. The term "freeman" is used in Magna Charta, (1215). The English statutes abound with the terms, in reference to almost every franchise or peculiar privilege, from the highest to the lowest, known to the English laws. It would be perfectly proper, and in consonance with the legal meaning and common understanding of the term, to say of Victoria, that "she is free of the throne of England," and of a cobbler, that he "is free of his trade in the city of London."

But the more common and important signification of the words is to designate the _citizens_, native or naturalized, and those specially ent.i.tled, as a matter of political and acknowledged right, to partic.i.p.ate in, or be protected by the government, as distinguished from aliens, or persons attainted, or deprived of their political privileges as members of the state. Thus they use the term "free British subject"--"freeman of the realm," &c. In short, the terms, when used in political papers, have a meaning very nearly, if not entirely synonymous, with that which we, in this country, now give to the word _citizen_.

But throughout the English law, and among all the variety of ways, in which the words "free" and "freemen" are used, as _legal_ terms, they are _never used as the correlatives, or opposites of slaves or slavery_--and for the reason that they have in England no such persons or inst.i.tutions, known to their laws, as slaves or slavery. The use of the words "free" and "freemen," therefore, do not in England at all imply the existence of slaves or slavery.

This use of the words "free" and "freemen," which is common to the English law, was introduced into this country at its first settlement, in all, or very nearly all the colonial charters, patents, &c. and continued in use, in this sense, until the time of the revolution; and, of course, until the adoption of the first state const.i.tutions.[15]

The persons and companies, to whom the colonial charters were granted, and those who were afterwards to be admitted as their a.s.sociates, were described as "freemen of said colony," "freemen of said province,"

"freeman of said company," "freemen of the said company and body politick," &c. (See charter of Rhode Island.)

Many, if not all the charters had a provision similar in substance to the following in the charter to Rhode Island, viz:

"That all and every the subjects of us, our heirs and successors,"

(i.e. of the king of England granting the charter,) "which are already planted and settled within our said colony of Providence Plantations, or which shall hereafter go to inhabit within the said colony, and all and every of their children which have been born there, or which shall happen hereafter to be born there, or on the sea going thither, or returning from thence, shall have and enjoy all liberties and immunities of _free_ and natural subjects, within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes whatsoever, as if they and every of them were born within the realm of England."

The following enactment of William Penn, as proprietary and Governor of the Province of Pennsylvania and its territories, ill.u.s.trates one of the common uses of the word "freeman," as known to the English law, and as used in this country prior to the revolution--that is, as distinguis.h.i.+ng a native born citizen, and one capable of holding real estate, &c. from a foreigner, _not naturalized_, and on that account subject to certain disabilities, such as being incompetent to hold real estate.

"And forasmuch as it is apparent that the just encouragement of the inhabitants of the province, and territories thereunto belonging, is likely to be an effectual way for the improvement thereof; and since some of the people that live therein and are likely to come thereunto, _are foreigners, and so not freemen, according to the acceptation of the laws of England, the consequences of which may prove very detrimental to them in their estates and traffic_, and so injurious to the prosperity of this province and territories thereof.

_Be it enacted_, by the proprietary and governor of the province and counties aforesaid, by and with the advice and consent of the deputies of the _freemen_ thereof, in a.s.sembly met, _That all persons who are strangers and foreigners_, that do now inhabit this province and counties aforesaid, _that hold land in fee in the same, according to the law of a freeman_, and who shall solemnly promise, within three months after the publication thereof, in their respective county courts where they live, upon record, faith and allegiance to the king of England and his heirs and successors, and fidelity and lawful obedience to the said William Penn, proprietary and governor of the said province and territories, and his heirs and a.s.signs, according to the king's letters, patents and deed aforesaid, _shall be held and reputed freemen of the province and counties aforesaid, in as ample and full a manner as any person residing therein_. And it is hereby further enacted, by the authority aforesaid, That when at any time any person, that is a foreigner, shall make his request to the proprietary and governor of this province and territories thereof, _for the aforesaid freedom_, the said person shall be admitted on the conditions herein expressed, paying at his admission twenty s.h.i.+llings sterling, and no more, any thing in this law, or any other law, act or thing in this province, to the contrary in any wise notwithstanding."

"Given at Chester," &c., "under the hand and broad seal of William Penn, proprietary and governor of this province and territories thereunto belonging, in the second year of his government, by the king's authority. W. PENN."[16]

Up to the time of our revolution, the _only_ meaning which the words "free" and "freemen" had, in the English law, _in the charters granted to the colonies_, and in the important doc.u.ments of a political character, when used to designate one person as distinguished from another, was to designate a person enjoying some franchise or privilege, as distinguished from aliens or persons not enjoying a similar franchise. They were never used to designate a free person as distinguished from a slave--for the very sufficient reason that all these _fundamental_ laws presumed that there were no slaves.

Was such the meaning of the words "free" and "freemen," as used in the const.i.tutions adopted prior to 1789, in the States of Georgia, North and South Carolina, Maryland, Delaware and New York?

The legal rule of interpretation before mentioned, viz: that an innocent meaning must be given to all words that are susceptible of it--would compel us to give the words this meaning, instead of a meaning merely correlative with slavery, even if we had no other ground than the rule alone, for so doing. But we have other grounds. For instance:--Several of these const.i.tutions have themselves explicitly given to the words this meaning. While not one of them have given them a meaning correlative with slaves, inasmuch as none of them purport either to establish, authorize, or even to know of the existence of slavery.

The const.i.tution of Georgia (adopted in 1777) evidently uses the word "free" in this sense, in the following article:

"Art. 11. No person shall be ent.i.tled to more than one vote, which shall be given in the county where such person resides, except as before excepted; _nor shall any person who holds any t.i.tle of n.o.bility, be ent.i.tled to a vote, or be capable of serving as a representative, or hold any post of honor, profit, or trust, in this State, while such person claims his t.i.tle of n.o.bility; but if the person shall give up such distinction_, in the manner as may be directed by any future legislature, _then, and in such case_, he shall be ent.i.tled to a _vote, and represent_, as before directed, and enjoy all the other benefits of a FREE citizen."

The const.i.tution of North Carolina, (adopted in 1776), used the word in a similar sense, as follows:

"40. That every _foreigner_, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, _and after one year's residence_ be deemed a FREE citizen."

This const.i.tution also repeatedly uses the word "freeman;" meaning thereby "a free citizen," as thus defined.

The const.i.tution of Pennsylvania, (adopted in 1776,) uses the word in the same sense:

"Sec. 42. Every _foreigner_, of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; _and after one year's residence, shall be deemed a_ FREE _denizen thereof_, and ent.i.tled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two year's residence."

The const.i.tution of New York, (adopted in 1777,) uses the word in the same manner:

"Sec. 6. That every male inhabitant of full age, who has personally resided in one of the counties of this state for six months, immediately preceding the day of election, shall at such election be ent.i.tled to vote for representatives of the said county in a.s.sembly, if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty s.h.i.+llings, and been rated and actually paid taxes to the State.

_Provided always_, That every person who now is a _freeman of the city of Albany, or who was made a freeman of the city of New York_, on or before the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, and shall be actually and usually resident in the said cities respectively, shall be ent.i.tled to vote for representatives in a.s.sembly within his place of residence."

The const.i.tution of South Carolina, (formed in 1778,) uses the word "free" in a sense which may, at first thought, be supposed to be different from that in which it is used in the preceding cases:

Sec. 13. The qualification of electors shall be that "every _free white man_, and no other person," &c., "shall be deemed a person qualified to vote for, and shall be capable of being elected a representative."

It may be supposed that here the word "free" is used as the correlative of slavery; that it presumes the "whites" to be "free;" and that it therefore implies that other persons than "white" may be slaves. Not so.

No other parts of the const.i.tution authorize such an inference; and the implication from the words themselves clearly is, that _some_ "white"

persons might not be "free." The distinction implied is between those "white" persons that were "free," and those that were not "free." If this were not the distinction intended, and if _all_ "white" persons were "free," it would have been sufficient to have designated the electors simply as "white" persons, instead of designating them as both "free" and "white." If therefore it were admitted that the word "free,"

in this instance, were used as the correlative of slaves, the implication would be that _some_ "white" persons were, or might be slaves. There is therefore no alternative but to give to the word "free," in this instance, the same meaning that it has in the const.i.tutions of Georgia, North Carolina and Pennsylvania.

In 1704 South Carolina pa.s.sed an act ent.i.tled, "_An act for making aliens FREE of this part of the Province._"--This statute remained in force until 1784, when it was repealed by an act ent.i.tled "_An act to confer the right of citizens.h.i.+p on aliens_"[17]

One more example of this use of the word "_freeman_." The const.i.tution of Connecticut, adopted as late as 1818, has this provision:

"Art. 6. Sec. 1. All persons who have been, or _shall hereafter_, previous to the ratification of this const.i.tution, _be admitted freemen_, according to the existing laws of this State, shall be electors."

Surely no other proof can be necessary of the meaning of the words "free" and "freeman," as used in the const.i.tutions existing in 1789; or that the use of those words furnish no implication in support of either the 'existence', or the const.i.tutionality of slavery, prior to the adoption of the const.i.tution of the United States in that year.

I have found, in _none_ of the State const.i.tutions before mentioned, (existing in 1789,) any other evidence or intimation of the existence of slavery, than that already commented upon and refuted. And if there be no other, then it is clear that slavery had no legal existence under them. And there was consequently no _const.i.tutional_ slavery in the country up to the adoption of the const.i.tution of the United States.

[Footnote 14: The State Const.i.tutions of 1789 were adopted as follows: Georgia, 1777; South Carolina, 1778; North Carolina, 1776; Virginia, 1776; Maryland, 1776; Delaware, 1776; Pennsylvania, 1776; New Jersey, 1776; New York, 1777; Ma.s.sachusetts, 1780; New Hamps.h.i.+re, 1783.

These early Const.i.tutions ought to be collected and published with appropriate notes.]

[Footnote 15: Since that time the words "free" and "freemen" have been gradually falling into disuse, and the word citizen been subst.i.tuted--doubtless for the reason that it is not pleasant to our pride or our humanity to use words, one of whose significations serves to suggest a contrast between ourselves and slaves.]

[Footnote 16: Dallas's edition of the Laws of Pennsylvania, vol. 1, Appendix, page 25.]

[Footnote 17: Cooper's edition of the Laws of South Carolina, vols. 2 and 4. "Aliens,"]

CHAPTER VII.

THE ARTICLES OF CONFEDERATION.

The Articles of Confederation, (formed in 1778,) contained no recognition of slavery. The only words in them, that could be claimed by any body as recognizing slavery, are the following, in Art. 4, Sec. 1.

"The better to secure and perpetuate mutual friends.h.i.+p and intercourse among the people of the different States in this Union, _the free inhabitants_ of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be ent.i.tled to all the privileges and immunities of _free citizens_ in the several States; and _the people_ of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions, as the inhabitants thereof respectively."

There are several reasons why this provision contains no legal recognition of slavery.

1. The true meaning of the word "free," as used in the English law, in the colonial charters, and in the State const.i.tutions up to this time, when applied to persons, was to describe citizens, or persons possessed of franchises, as distinguished from aliens or persons not possessed of the same franchises. Usage, then, would give this meaning to the word "free" in this section.

2. The rules of law require that an innocent meaning should be given to all words that will bear an innocent meaning.

3. The Confederation was a league between states in their corporate capacity; and not, like the const.i.tution, a government established by the people in their individual character. The confederation, then, being a league between states or corporations, as such, of course recognized nothing in the character of the state governments except what their corporate charters or state const.i.tutions authorized. And as none of the state const.i.tutions of the day recognized slavery, the confederation of the state governments could not of course recognize it. Certainly none of its language can, consistently with legal rules, have such a meaning given to it, when it is susceptible of another that perfectly accords with the sense in which it is used in the const.i.tutions of the states, that were parties to the league.